I INTRODUCTION TO THE DISPUTE RESOLUTION FRAMEWORK
The Swedish legal system is a civil law system. The most important source of law is statutes. Case law, preparatory works and legal doctrine constitute secondary sources of law. Precedents of higher courts are, almost without exception, followed by lower courts.
The Swedish court system consists of general courts, specialist courts and administrative courts.
The general courts have jurisdiction to try matters not expressly excluded from their jurisdiction. They therefore have jurisdiction over all civil and criminal matters. The general courts are the district courts, the courts of appeal and the Supreme Court.
The jurisdiction of the specialist courts is confined to certain types of disputes. Examples of such courts include the Labour Court; the Market Court, which has jurisdiction over market-related disputes, such as competition matters, marketing of commercial products and certain consumer issues; and the land and environmental courts, which have jurisdiction over environmental and real estate-related issues, such as environmental damages, land parcelling, expropriation and site-leasehold rights.
The administrative courts have jurisdiction over administrative matters mainly between public authorities and private parties. For example, the administrative courts hear all tax matters. As with the general courts, there are three levels of administrative courts, namely the administrative courts of first instance, the administrative courts of appeal and the Supreme Administrative Court.
Generally, commercial disputes are either brought before the general courts or referred to arbitration. Swedish arbitration is governed by the Arbitration Act of 1999, which conforms closely to the UNCITRAL Model Law. The leading Swedish arbitration body is the Arbitration Institute of the Stockholm Chamber of Commerce (the SCC Institute), which is widely used for both domestic and international disputes.
Although mediation and other forms of ADR are not as widely employed in Sweden as in some other European countries, such as the United Kingdom, mediation is to a certain extent used in both domestic and international disputes. New legislation on mediation in civil disputes was introduced on 1 August 2011. The SCC Institute has its own set of mediation rules, which the parties may adopt for their mediation.
II THE YEAR IN REVIEW
i The Arbitration Rules and Rules for Expedited Arbitrations
The SCC Institute has introduced a number of changes to its Arbitration Rules and Rules for Expedited Arbitrations. The new rules entered into force on 1 January 2017. A few of the key changes are set out below.
Introduction of a summary procedure
A provision for summary procedure has been introduced. The summary procedure will enable the arbitral tribunal to determine factual or legal issues without necessarily undertaking every procedural step that may otherwise be adopted for the arbitration. The purpose of the summary procedure is to save time and costs in cases such as when a party has made an allegation that is manifestly unsustainable, or when a claim is clearly unfounded as a matter of law.
The summary procedure is flexible and designed as a case management tool available at any time during the arbitration. If the tribunal grants a request for summary procedure, the tribunal shall seek to determine the issue in question in an efficient and expeditious manner, giving each party a reasonable opportunity to present its case.
Joinder and multiple contracts
A new provision is introduced with respect to multiple contracts, which allows a party to bring claims under more than one arbitration agreement in a single arbitration.
Moreover, the possibilities to consolidate arbitrations under the SCC Rules have been broadened. A party may request that a newly commenced arbitration be consolidated into a pending arbitration under the SCC Rules, provided that the relevant criteria are met. In addition, a new article has been introduced regarding joinder of additional parties, according to which a party to the arbitration may request that the SCC’s board join one or more additional parties to the arbitration. The board may decide to join one or more additional parties provided that the SCC does not manifestly lack jurisdiction over the dispute between the parties.
Pursuant to the new rules, the tribunal has to request the parties’ approval to appoint a specific candidate as secretary, who shall be impartial and independent. The tribunal shall consult the parties regarding the tasks of the secretary.
The new provision safeguards the tribunal and the continued development of the proceedings, by allowing the removal of the secretary through challenge proceedings and explicitly stating that a party’s request for removal does not prevent the arbitration from proceeding. If a secretary is removed, the tribunal may propose the appointment of another secretary.
Efficiency and expeditiousness
A new article has been introduced that describes the expectation on the conduct of the participants to the arbitration, be it the tribunal, the parties or the SCC; all of whom shall act in an efficient and expeditious manner. Moreover, the SCC Rules now explicitly state that the tribunal shall apportion the costs of the arbitration between the parties, having regard to each party’s contribution to the efficiency and expeditiousness of the arbitration.
The standard of efficiency and expeditiousness can be found in a number of provisions throughout the new SCC Rules, such as joinder, multiple contracts, consolidation, case management conference, summary procedure and, importantly, in the provisions regulating costs.
Additional provisions for investment treaty disputes
The SCC has introduced an Appendix for investment treaty disputes, which consists of four new provisions that supplement the Arbitration Rules and that apply to cases based on a treaty providing for arbitration of disputes between an investor and a state.
With respect to the number of arbitrators, the new Appendix provides that the tribunal shall be composed of three arbitrators where the parties have not agreed on the number of arbitrators.
The Appendix also provides that third parties may request or be invited by the tribunal to make a written submission in the arbitration. For a written submission to be allowed, it shall meet the relevant criteria and the tribunal will take into account relevant circumstances, such as the nature and significance of the interest of the third party in the arbitration and whether the submission assists the tribunal in determining an issue by bringing a perspective or knowledge distinct from that of the disputing parties.
ii Tribunal jurisdiction
The Supreme Court has confirmed that a court’s mandate to review a tribunal’s jurisdiction is not limited to the issue of whether the parties are bound by the arbitration agreement.
A party in an ongoing arbitration initiated court proceedings under Section 2 of the Swedish Arbitration Act, which provides that general courts may, at the request of a party, review an arbitral tribunal’s jurisdiction during the arbitration proceedings. The court was requested to affirm that (1) the parties were not bound by the arbitration agreement, and (2) even if the parties were bound by the arbitration agreement, the tribunal lacked jurisdiction to resolve the dispute. The counterparty moved to dismiss premise (2), arguing that this was beyond the limits of the court’s mandate under Section 2. The Svea Court of Appeal agreed, ruling that the court’s review of the arbitral tribunal’s jurisdiction is limited to assessing the existence of a valid and applicable arbitration agreement.
On appeal, the Supreme Court reversed the ruling of the Svea Court of Appeal, holding that Section 2 should be interpreted so that the scope of the court’s jurisdictional review is identical to that of the arbitral tribunal. Hence, the court’s mandate to review a tribunal’s jurisdiction in an ongoing arbitration covers all jurisdictional issues, and is not limited to the issue of whether the parties are bound by the arbitration agreement.
iii Claims that the arbitral tribunal had exceeded its mandate
The Svea Court of Appeal rejected claims that the arbitral tribunal had exceeded its mandate and committed a procedural error by procuring witness statements and accepting new evidence after the cut-off date.
The losing party in an arbitration regarding a licence agreement challenged the arbitral award, arguing that the tribunal had exceeded its mandate and committed a procedural error affecting the outcome of the arbitration. The applicant argued that the arbitral tribunal had erred by (1) contacting witnesses and requesting witness statements, and (2) accepting the submission of new evidence after the cut-off date, despite having previously said that such submissions would be allowed only under certain specific circumstances.
The Svea Court of Appeal rejected the challenge. The Court of Appeal held that the arbitral tribunal may not gather evidence on its own initiative, but once a party has referred to the evidence, the tribunal may act to ensure that the evidence can be heard by requesting or inviting witnesses to appear before the tribunal. Regarding the tribunal’s decision to allow submission of new evidence after the cut-off date, the Court of Appeal held that the party challenging the award had failed to show that the tribunal was not entitled to deviate from its prior decision regarding such submissions. The Court explained that a tribunal has the power to adjust its own procedural decisions because the parties must be treated equally and have the opportunity to sufficiently argue their respective cases.
Hence, the Court of Appeal concluded that the tribunal had not exceeded its mandate or committed any procedural error, and rejected the challenge.
III COURT PROCEDURE
i Overview of court procedure
Court proceedings in the general courts are governed by the Code of Judicial Procedure. The Code came into force in 1948 and is based on three fundamental principles that are predominant in Swedish judicial procedure, namely the principles of immediacy, orality and concentration. According to the principle of immediacy, the court may only base its judgment on what has been said and argued at the main hearing. The principle of orality means, inter alia, that the parties have to present their full case at the main hearing and that witnesses must appear before the court to give their testimony in person. According to the principle of concentration, the case must be heard and concluded at the main hearing without interruption.
Although these principles continue to influence the proceedings before the general courts, they have become somewhat less predominant following the revision of the Code of Judicial Procedure in November 2008. The changes, which were implemented to increase the efficiency and speed of the proceedings, provide possibilities for the parties to agree that witnesses may give their testimony through written witness statements and that the parties (as part of their opening statements at the main hearing) may, if appropriate, refer to the case file rather than having to present all the facts and circumstances on which they rely. Other changes are that leave to appeal is required to appeal all judgments rendered by the district courts in civil actions and that a party’s right to re-hear witnesses in the courts of appeal has been limited.
Another fundamental principle in Swedish judicial procedure is the principle of free evaluation of evidence. Swedish law is quite liberal in the sense that there are few formal rules of evidence. As part of its assessment of the case, a Swedish court may freely evaluate all events in the course of the proceeding, such as the evidence relied upon by the parties, the demeanour of witnesses, the general deportment of the parties and their compliance with court orders.
The parties are responsible for presenting the evidence on which they rely. In civil cases, the court may not, with some minor exceptions (such as in family-related cases), sua sponte order production of evidence. Swedish judicial procedure also requires the parties to identify all the written and oral evidence on which they intend to rely at the main hearing and what they intend to prove with each and every piece of evidence. As a matter of principle, no new evidence may be introduced during the main hearing. There are no specific rules on the inadmissibility of evidence in Sweden. Even unlawfully obtained, or privileged, evidence is admissible, even if it could be argued that the European Convention on Human Rights limits admissibility in certain very specific situations.
ii Procedures and time frames
A civil action in a general court is commenced when the plaintiff files an application for summons. If the application complies with the formal requirements of the Code of Judicial Procedure, the court will issue a summons against the respondent. The respondent is requested to submit an answer within a certain period (normally within three to four weeks) of being served. Failure to respond in due time may result in a default judgment. Following the respondent’s answer, there may be further exchanges of submissions.
Following the revision of the Code of Judicial Procedure in 2008, courts must produce a timetable for the entire proceedings. The parties are under an obligation to notify the court if the timetable cannot be complied with.
In most civil cases, a preparatory hearing is held after the initial exchanges of submissions. The purpose of such a hearing is to clarify the matters in dispute, identify any common ground between the parties and discuss case management. The court also has a statutory obligation to investigate and facilitate the possibility of an amicable settlement of the dispute.
The time frame for a case depends to a large extent on the court’s caseload. In general, a dispute of some complexity will normally take 12 to 18 months before the district court and the court of appeal, respectively.
As from 1 January 2010, a court may, at the request of a party, declare that the proceedings will be given priority if the proceedings until then have been unreasonably delayed (declaration of priority). In its assessment, the court may take into consideration:
- a the complexity of the case;
- b how the party has managed its case throughout the proceedings;
- c how the court and other relevant authorities have managed the proceedings; and
- d how important priority is for the requesting party.
In general, the parties can expect to receive a judgment within two to four weeks following the main hearing. In more complex cases, the time for the court to issue its judgment may be longer.
Interim measures are available under Swedish law. This includes sequestration and such other measures that may be necessary to preserve the rights of the plaintiff. Sequestration may be granted to secure execution of a future judgment for payment or a superior right to a specific property. A court order for sequestration is enforced by the Enforcement Authority upon a party’s application. Aside from sequestration, a court may order such interim measures as it deems necessary to preserve the plaintiff’s rights, such as preliminary injunctions to enjoin a respondent from taking a certain action. Such interim measures may be ordered under penalty of a fine.
For interim measures to be granted, the plaintiff must show that it is likely that the respondent’s activities compromise the plaintiff’s rights and that the plaintiff will be successful on the merits of the case. The plaintiff must also post security (such as a bank guarantee) sufficient to cover the damage that the respondent could incur as a result of the interim relief (should the plaintiff ultimately not be successful on the merits). If the plaintiff can show that it is likely that the interim measure sought would be undermined by the respondent if notified of the application, a court may order interim measures ex parte.
Interim measures may be sought prior to initiating court or arbitration proceedings. In the event that no legal proceedings are pending, the plaintiff must initiate such proceedings within one month from the court’s order on interim measures, failing which the order will be annulled.
iii Class actions
In 2003, Sweden enacted the Class Actions Act. In short, this provides that one plaintiff can litigate on behalf of a passive group of class members, who – although not formally parties to the proceedings – are bound by the court’s judgment. Provided that all other conditions for the use of class actions are met, any claim that can be commenced before a court as a civil action may also be raised under the Class Actions Act.
The Class Actions Act allows for three forms of class actions to be brought. Any person or entity belonging to a class can initiate a private class action to pursue a claim. Moreover, in disputes between consumers and goods or service providers, an organisational class action can be pursued by certain organisations even though they do not have claims of their own. Finally, the Class Actions Act provides for public class actions whereby certain authorities appointed by the government may act as the plaintiff on behalf of a group of class members. Public class actions are intended to permit authorities to pursue claims of public interest.
A condition for bringing a class action before a Swedish court is that the relevant facts must be common or similar to the entire class. Accordingly, a class action will not be permitted if there are substantial individual differences between the claims within the class. Another condition is that a class action must be the best alternative compared with other forms of procedure such as consolidated claims or the pilot case model. Also, the class must be suitably defined and the plaintiff must be suitable to represent the class. The Class Actions Act is based on an ‘opt-in’ solution. Class members must thus actively choose to be included as a member of the class. Only class members who have given written consent to the court will be allowed to participate in the proceedings as passive class members. Hence, a judgment under the Class Actions Act will not have res judicata effect in respect of class members who have not provided such written consent to the court.
The enactment of the Class Actions Act was preceded by considerable debate, with some commentators suggesting that the Act would pave the way for excessive class action litigation in Sweden. It is fair, however, to say that those fears have not materialised; the number of class actions have been fairly limited since its introduction in 2003. In 2012, the Supreme Court upheld the court of appeal’s judgment rendered in favour of a class of plaintiffs in the first class action court proceedings in Sweden.
iv Representation in proceedings
There is no monopoly on legal services in Sweden. No formal qualifications, such as a law degree or membership of the Swedish Bar Association, are required to appear before courts in civil cases. However, the person representing a party must be deemed by the court to be suitable as counsel in the case, master the Swedish language and be resident in Sweden or another state within the European Economic Area. Persons not residing within the European Economic Area may represent a party at the court’s discretion. Generally, however, parties in civil cases rarely represent themselves. Instead, they normally choose to retain members of the Swedish Bar Association as counsel.
In criminal cases, the court usually appoints counsel to defend the accused. Only members of the Swedish Bar Association are eligible for such assignment. In rare cases, however, the defendant chooses to retain his or her own defender. Beyond the requirements applicable to counsel in civil cases (see above), no formal qualifications apply to defenders privately retained by the accused.
v Service out of the jurisdiction
Documents in civil matters may be served outside the jurisdiction both within and outside the framework of treaties and conventions.
For service of documents within the European Union, EU Regulation No. 1393/2007 provides that Swedish courts and other authorities may forward an application directly to the competent authority in the Member State where service is required. For service of documents within the Nordic countries, the 1974 Treaty between Sweden, Denmark, Finland, Iceland and Norway on Mutual Assistance in Matters Concerning Service of Documents and Taking of Evidence applies. According to the Treaty, letters of request for service of documents may be exchanged directly between the competent authorities within the Nordic countries. Also private applicants may request service of documents. Such requests should be submitted to the Swedish Ministry of Justice, which will forward the request to the competent court in the relevant Nordic country.
The Swedish Ministry of Justice provides assistance for Swedish courts and private applicants wanting to serve documents outside the Nordic area and the European Union, such as in the countries having ratified the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
vi Enforcement of foreign judgments
For a foreign court judgment to be enforced in Sweden, a treaty on enforcement between Sweden and the foreign state is normally required. Sweden has concluded such reciprocal treaties with the Nordic countries, Switzerland and Austria as well as other countries within certain specific areas of law.
Where the judgment has been issued by a court of a state in respect of which the EU Regulation No. 1215/20122 or the Lugano Convention applies, the judgment will be enforceable in Sweden upon a formal decision of the Svea Court of Appeal (by way of an exequatur procedure). The Svea Court of Appeal’s examination of the foreign judgment only relates to matters of form, procedure and public policy. A slightly different regime applies to enforcement of judgments under the treaties concluded with other Nordic countries. Revisions and amendments were enacted in 2015 in light of the new Brussels I Regulation as well as the general transfer of the exequatur procedure from the Svea Court of Appeal to district courts.
Judgments from non-Convention countries are as a matter of principle not enforceable in Sweden unless there is a bilateral treaty on enforcement. However, according to case law and legal doctrine, a judgment from a foreign court may be ‘indirectly’ recognised in Sweden. Depending on the circumstances of the case, such as the basis for the jurisdiction of the foreign court that issued the judgment, the Swedish court may after a rather summary examination of the foreign judgment render a Swedish judgment based on the foreign judgment and without retrying the case on the merits.
vii Assistance to foreign courts
EU Regulation No. 1206/2001 sets out the legal framework for the procedure for courts situated in another Member State of the EU (other than Denmark) to make requests for the taking of evidence in Sweden. The foreign courts can either ask the Swedish court to take evidence on their behalf or ask for permission to take evidence themselves. The request should be made in the form annexed to the Regulation and should include information on the case and (where relevant) a list of questions or matters to be put to the witness.
In addition to EU Regulation No. 1206/2001, the 1974 Nordic Treaty on Mutual Legal Assistance in Matters Concerning Service of Process and Taking of Evidence and the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters may apply to Swedish courts’ assistance to foreign courts in taking evidence in Sweden.
viii Access to court files
The main rule is that court hearings and court files are open to the public. Certain information, such as trade secrets, may be kept secret (the parties to the proceedings must still have unrestricted access to the case file). A court may also order that the entire hearing, or part thereof, should be held in private to the extent that protected information will be disclosed during the course of the hearing.
ix Litigation funding
Litigants generally fund their litigation by themselves or by means of insurance. There is no established practice or developed market for third-party funding in Swedish court proceedings.
IV LEGAL PRACTICE
i Conflicts of interest and Chinese walls
By law, no person may act as counsel for a party in court proceedings in which he or she has previously represented the other party.
Conflicts of interest are managed within the framework of the Swedish Bar Association. The overriding principle is that a member of the Swedish Bar Association should be independent and not represent conflicting interests. In principle, Chinese walls are not accepted.
Lawyers that are not members of the Bar Association must adhere to general contractual principles of loyalty and general principles of law.
ii Money laundering, proceeds of crime and funds related to terrorism
Following the amendment in 2005 to the Act on Measures against Money Laundering,3 members of the Bar Association and their associates are under an obligation to confirm the identity of new clients and conduct a client due diligence review before taking on a matter within certain specified practice areas. Matters such as disputes are generally excluded from these obligations. Members of the Bar Association have a duty to report suspected money laundering to the police. As from March 2009, these duties have been extended to suspected funding of terrorism.
iii Data protection
According to the Swedish Data Protection Act,4 processing of personal data is generally prohibited unless the registered person has given his or her consent to the processing or, inter alia, if the processing is necessary to comply with a legal obligation or for the purposes of a legitimate interest. In the field of dispute resolution, the privacy legislation consequently affects the possibility to store evidence that contains personal data and the data controller must ensure that the processing complies with all requirements of the privacy legislation. Moreover, it is generally prohibited to transfer any personal data, such as evidence that contains personal data, to any country outside the EU or EEA, except for certain situations, inter alia, where the transfer is necessary to establish, exercise or defend a legal claim. However, it is generally required that the transfer be made in close connection with the proceedings in which the legal claim is established, exercised or defended.
V DOCUMENTS AND THE PROTECTION OF PRIVILEGE
The relationship between members of the Bar Association and their clients is privileged; correspondence and other documents of a lawyer’s file may not be the subject of an order for production of documents. In addition, a lawyer (and his or her associates) may, with some minor exceptions, refuse to testify on issues relating to the client–attorney relationship. The privilege further entails that a lawyer’s office may not be subject to certain searches and seizures by authorities.
Communications with and information specifically entrusted to someone acting as counsel in court proceedings are privileged.
There are no specific rules that apply to in-house counsel, and communications with in-house counsel are not privileged as such under Swedish law.
ii Production of documents
At the request of a party, a Swedish court may order production of documents. The party seeking production has to identify the documents to be produced with reasonable specificity and explain what the documents are intended to prove; documents must be of evidentiary value in the case. A party may also request production of a certain defined category of documents. Certain types of documents are (with some exceptions) exempted from the obligation to produce, such as notes prepared exclusively for private use and documents containing trade secrets.
The court may order private individuals or legal entities not party to the proceeding to produce documents.
An order for production of documents may be made under penalty of a fine and can be enforced by the Enforcement Agency.
The obligation to produce documents applies also to electronic documents. So far, only paper printouts of electronic documents have been ordered to be produced by the Supreme Court. It is unclear, however, whether this obligation could also extend to the production of documents electronically, including metadata.
VI ALTERNATIVES TO LITIGATION
i Overview of alternatives to litigation
In general, larger commercial disputes in Sweden are settled by arbitration rather than litigation.
Mediation and other alternative forms of dispute resolution are not widely used.
Arbitration is the preferred method of settling commercial disputes in Sweden. The SCC Institute is one of the world’s leading arbitration institutions, registering 199 new cases in 2016.
Although the Code of Judicial Procedure is not applicable to arbitral proceedings, most Swedish lawyers are imbued with the legal culture and the principles underlying the Code. As a matter of practice, therefore, the Code influences the conduct of arbitration in Sweden.
As with any modern arbitration law, the overriding principle in any arbitration conducted in Sweden is that of party autonomy. The control of the conduct of the arbitration very much lies with the parties.
An arbitration in Sweden is initiated by the claimant filing a request for arbitration, which, among other things, should include a summary of the dispute, a preliminary statement of the relief sought and the claimant’s choice of arbitrator (in the case of a three-member tribunal). The respondent will then submit a reply and appoint an arbitrator. After further exchanges of briefs and possibly a preparatory hearing, a main hearing will be held.
In international arbitration conducted in Sweden, it has in recent years become quite common to submit written witness statements. Another trend relates to document production, where it is becoming more common to allow more extensive document production in international arbitration than in the Swedish courts.
Effective as from 1 January 2010, the SCC Institute has adopted rules on emergency arbitrators. According to the new rules, parties may request interim measures even before the arbitration has been referred to an arbitral tribunal. Following an application for interim measures, an emergency arbitrator should be appointed within 24 hours and make its decision within five days of the appointment. Within that time, both parties must be heard. The SCC Board may extend this period if it proves insufficient or the respondent has not been notified. The emergency arbitrator may not act as arbitrator in the arbitration proceedings between the parties unless otherwise agreed.
An arbitral award rendered in Sweden cannot be appealed or set aside on the merits. Thus, the Swedish Arbitration Act contains no provision similar to Section 69 of the English Arbitration Act, allowing parties to appeal an arbitral award on a point of law. An arbitral award may, however, be declared invalid wholly or in part if the matter in dispute was not arbitrable; the award or the manner in which the award was rendered violates Swedish public policy; or the award has not been made in writing or has not been signed by the majority of the arbitrators. The right to seek nullification of the award on these three grounds cannot be waived by agreement of the parties.
An arbitral award rendered in Sweden may also be challenged if:
- a the arbitration agreement is invalid;
- b the arbitrators have exceeded their mandate;
- c the arbitral proceedings should not have taken place in Sweden;
- d irregularities exist as to the appointment of an arbitrator;
- e an arbitrator lacks capacity or impartiality; or
- f there otherwise occurred an irregularity in the course of the arbitration that probably influenced the outcome of the case.
If none of the parties is domiciled or has its place of business in Sweden, they may agree in writing to exclude or limit the application of these grounds for setting aside an award. A challenge action must be brought within three months from the service of the award.
A party seeking enforcement or recognition in Sweden of a foreign arbitral award must first file an application for recognition and enforcement of the award with the Svea Court of Appeal in Stockholm. Sweden is a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the grounds for refusing recognition and enforcement of a foreign arbitral award set out in Article V of the New York Convention have been implemented in the Swedish Arbitration Act. In this respect, it should be noted that Sweden did not exercise either the reciprocity reservation or the commercial nature reservation available to the signatories to the New York Convention.
As previously mentioned, the new and revised SCC Arbitration Rules and the SCC Expedited Arbitration Rules entered into force on 1 January 2017.
Mediation is sometimes used by the courts as a means to try to settle a dispute. Mediation can also be used by agreement of the parties and without any involvement of the court. As from 1 August 2011, new legislation on mediation in civil disputes has been introduced to implement Directive 2008/52/EC of the European Parliament and of the Council, providing rules on mediation outside of court proceedings. The law, which applies to party-initiated mediation (as opposed to mediation initiated within the framework of court proceedings), contains several new features to promote mediation as a dispute resolution mechanism, such as an extension of potential statutory limitations, a confidentiality obligation for the mediator and the option to enforce agreements concluded through mediation. Presently, there are no data available to tell whether the law has had any effect on the number of mediations.
In addition to the law, the general district courts’ obligation to facilitate an amicable settlement has been re-emphasised; the courts are relieved from their duty to facilitate a settlement of the dispute only where it would be inappropriate to do so. As of 1 August 2011, also the courts of appeal have an obligation to facilitate settlement when appropriate.
The SCC Institute has adopted its own set of Mediation Rules.
iv Other forms of alternative dispute resolution
Expert determination is not frequently used for resolving disputes in Sweden; even disputes involving technical or financial issues tend to be settled by arbitration. In certain contracts, such as major construction contracts or share purchase agreements, it is frequently provided that an issue in dispute is first to be brought before an expert panel in accordance with an expedited procedure agreed upon by the parties.
VII OUTLOOK AND CONCLUSIONS
The main focus of the past few years has been to find ways of expediting court proceedings. The Code of Civil Procedure was revised accordingly in November 2008. The law on priority for lengthy proceedings is a further expression of the determination on the part of the legislator to make court proceedings quicker. It is fair to say that courts now have ample tools to manage and expedite proceedings, but as practitioners, we have not yet noted any significant changes when it comes to the speed of court proceedings in Sweden. Case management differs from court to court and even from judge to judge. Even after the statutory reforms, efficient case management still very much depends on the willingness of the judge and counsel to contribute to speedy and efficient proceedings. However, according to a survey by the Swedish Courts Administration, a majority of the courts of appeal note a positive change with regard to the length of the proceedings. Since leave to appeal is now required for all civil cases, the courts of appeal have experienced a reduced caseload. More resources can be allocated to cases that are granted leave to appeal.
However, recent case law from the Swedish Supreme Court following the revision of the Code of Civil Procedure indicates that the courts of appeal apply the rules too restrictively and, thus, leave of appeal is denied in too many cases. Of the appealed decisions in 2012 not to grant leave of appeal, the Supreme Court only upheld one.5 A comprehensive government survey conducted in 2013 also found that initially, following the 2008 reform, the rules on leave to appeal were applied too restrictively. While the application of the leave of appeal rules has become more generous, it still varies between the different courts and is not yet considered to correspond to the level envisaged by the reform.6 Further, the survey concluded that the 2008 revision of the Code of Civil Procedure has had a positive effect on the parties involved and for the judicial system as a whole. One important factor is that the new procedural rules in the courts of appeal (particularly the new procedure to use audiovisual recordings from the district courts to take evidence) emphasise that the administration of justice primarily lies with the court of first instance. Still, it is clear that there will be a continued focus on the efficiency of the court system and the courts’ core judiciary tasks.
As noted above, the new and revised SCC Arbitration Rules and the SCC Expedited Arbitration Rules entered into force on 1 January 2017. The Arbitration Act will also be revised in the coming years. The focus of both these revisions is to further establish Sweden’s position as a preferred venue for arbitration. The proposed amendments to the Arbitration Act should, if enacted, further improve the legal framework for international arbitration proceedings in Sweden and ensure that such disputes can be resolved even more efficiently than today. The Swedish government works actively to maintain and improve Sweden’s attractiveness for foreign investment, and in connection with this, the Swedish government acknowledges that it is important to ensure that commercial disputes can be resolved efficiently. Both the revision of the SCC Arbitration Rules and the SCC Expedited Arbitration Rules as well as the proposed amendments to the Arbitration Act represent steps forward in this regard.
1 Jakob Ragnwaldh and Niklas Åstenius are partners at Mannheimer Swartling Advokatbyrå AB.
2 The new Brussels I Regulation, which entered into force on 10 January 2013 and thereby replaced the old Brussels I Regulation, No. 44/2001.
3 1993:768. In 2009 the statute was renamed the Anti-Money Laundering and Terrorism Financing Act (2009:62).
5 NJA 2012 N 19.
6 Report published as Swedish government official reports, SOU, 2012:93.